Tony Leon should apologise for Hlophe remarks - JHA

Former DA leader accused by Alliance of launching a despicable and racially divisive attack on the Cape JP

The Justice for Hlophe Alliance condemns in the strongest possible terms former DA leader Tony Leon for the scurrilous, scandalous and unwarranted personal attacks on Judge President Hlophe and other black judges, which are calculated to bring the judges, the judiciary and the administration of justice into disrepute (see article). The Alliance calls on the public to reject Leon's despicable racially divisive tactics, and for right-thinking members of the public to fully support Judge President Hlophe and to rally behind the rejuvenated campaign to have him appointed as the next Chief Justice of the Republic.

The Justice for Hlophe Alliance notes with extreme sadness that Tony Leon, a Jewish South Africa citizen, has blatantly imported and invoked language and tactics from Israeli politics in an effort to slander the Judge President.  Just two years ago, an Israeli member of parliament, Effi Eitam's declared that Israel should expel West Bank Palestinians and bar Israeli Arabs from political life, since the latter are "a fifth column, a league of traitors."  

During the fighting in Gaza and Lebanon such tones were increasingly rising in the Knesset and even Knesset Members from Arab parties were charged with being "traitors and a fifth column" by their Jewish detractors (see here.) This philosophy of politics by stigmatizing fits in neatly with the "rhetoric of 'extermination' described by Abir Koptyin in an article entitled "Fifth column forever? Why is Arab criticism always labelled as conspiracy to destroy Israel?"  He states:

"Whenever Arabs speak up and voice criticism that does not flatter Israel's policies, this criticism is labelled as an attempt to destroy and exterminate. Every time the question of the relationship between the State and its Arabs citizens is on the political and media agenda in Israel, many opinion leaders choose to consistently make use of rhetoric of "extermination."... The rhetoric and myth regarding the "threat" are used to reject any criticism or proposal for change. This even shapes to a large extent the perception of the Arab public being an "enemy" and apparently legitimizes the continuation of hostile policies towards it instead of reaching a mutual understanding."  

The Justice for Hlophe Alliance warns Leon and others against starting or introducing into our society a racist discourse that could replicate the Arab-Israeli eternal strife.

The Justice for Hlophe Alliance cautions that attacking black judges on spurious grounds is rapidly becoming one of the favourite pastimes and hobbies of white politicians from the Democratic Alliance.  Given our odious apartheid legacy and racially-based political culture, such comments claiming black judges are "fifth column" members who should be denied appointment to positions on the Constitutional Court contain coded political messages that are provocative and inflammatory.  

If left unchecked they can take members of the Public down the same dead-end road these racist politicians had taken our country during apartheid. The tragic result would be that Blacks will believe that they can only get justice from African judges and whites will feel the same way. The Justice for Hlophe Alliance urges all right-thinking South Africans to condemn the filthy politics of division, opportunism and appeal to bigotry manifest in Leon's statement.  

The Justice for Hlophe Alliance lets it be known that it will not allow the likes of Leon to take pot shots at the black judiciary, knowing full well that judges cannot defend themselves publicly.  Justice is too precious a commodity and should not be sacrificed on the altar of political expediency. We demand that Leon apologize unconditionally for his incendiary remarks against Judge President Hlophe.

The Justice for Hlophe Alliance will be embarking on a proactive, focussed, unapologetic and aggressive campaign to expose the schemes and stratagems employed by those who seek to derail Judge President Hlophe's well-deserved elevation to the position of Chief Justice of the Republic.   We cannot sit idly by when Leon and his racist allies are besmirching an outstanding man, Judge President Hlophe and are now threatening to blackmail President Zuma and the ANC into voting down his nomination as Chief Justice.

The Justice for Hlophe Alliance reminds all our compatriots of the following basic facts about Judge President Hlophe. He is amply qualified to serve on the Constitutional Court. Hlophe has five university degrees, including a Masters and a PHD from Cambridge University in the UK, which is amongst the leading universities in the world. That is a feat that stands unmatched and unrivalled by any of the Chief Justices at the helm of our constitutional court since the advent of our democracy.  He was the youngest judge ever appointed to head the second largest court in our country and has years of experience in private practice and the academic world where he served as a law professor.  

Every judicial nominee ought to be treated with decency and fairness. But Hlophe particularly deserves a healthy dose of respect, as he is a genuine South African hero who rose from a very impoverished background, reached the pinnacle of success, rejected phenomenal wealth he could have amassed in the private sector (BEE world) and made a deliberate choice to dedicate his life to public service. His performance on the bench has clearly shown him to be a pillar of transformation and an architect for a non-racist judicial system.  

There were several judgments including one in favour of De Lille of the ID, another landmark ruling affirming the right of poor and illiterate shack- dwellers to receive their notices in their mother tongue instead of English.  Hlophe has staunchly advocated the right of access to courts and has championed the use of African languages in our courts.

Hlophe is also a brilliant legal scholar who has published law review articles including "The role of judges in a transformed South Africa" (1995).  He has also mentored and groomed some of the judges who are now gracing the constitutional court and the Supreme Court of Appeal.  And that is not all - Hlophe emerged many years ago as an expert on the doctrine of legitimate expectation.  His published scholarly works on the subject has been quoted extensively in German, US, British and Australian law journals and is frequently relied upon by our courts. 

His scholarly contribution on the subject has been described by the Concourt itself as part of "a rich academic discussion." Hlophe's approach on the doctrine was later praised and emulated by the Namibian Chief Justice in a case involving permit applications and legitimate expectations. He lauded Hlophe for having "lucidly and succinctly stated the principles pertaining to the substitution of the functionary's decision" and legitimate expectations. 

The Justice for Hlophe Alliance reminds all our compatriots that no serious participants in South African public dialog want to see the debate around judicial independence and transformation stifled by resort to accusations of racism.  Yet many very serious, and very vocal, white participants in the debate around Hlophe prey upon gullibility and fear about affirmative action, demonizing ideas and people alike. 

The way toward better race-neutral discourse on the judiciary is itself only clear when lit by truthful dialog and respect for all members of the judiciary, not just whites.   That goes for Hlophe as well - his leading role as a champion and martyr of transformation shall withstand all hidden agendas to derail his judicial career, including his elevation to the top. 

Statement issued by Adv. Khayelihle Thango and Mr. Percy Gumbi of the Justice for Hlophe Alliance KZN Chapter, June 16 2009

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